Unionists need to organise for the right to strike, for the effective strike and for workers’ control.

1. Unions’ right to strike campaign is to repeal all Fair Work Act penal powers and for a ‘firewall’ protection for workers in their unions taking industrial action.

ILO principles can prevail:

‘The right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests. These interests not only have to do with obtaining better working conditions and pursuing collective demands of an occupational nature but also with seeking solutions to economic and social policy questions and to labour problems of any kind which are of direct concern to the workers.’

The ACTU argued ILO principles with the 1993 Keating reforms for the first enterprise bargaining protected action regime, but we did not achieve all our the aims. This protected action limited right to strike was weakened under Reith’s 1996 WRAct.

‘Repressive tolerance’ of strikes under corporate legal attack moved to repression of strikes under WorkChoices – the most severely regulated anti-strike regime in the OECD world – still retained in FWA. Howard’s WC spin says ‘we are not taking away the right to strike’ but in practice unionists are not free to strike.

Still no one argues against the principles. ALP MPs and Rudd in 2005 criticised WC and supported the ILO right to strike. But the Rudd and Gillard government flouts such a right to strike.

In ACTU policies there remains scope for the endorsement of ILO principles, based on an appreciation of the right to strike as a civil, political, and socio-economic entitlement.

In 2012 right to strike amendments can go through this Parliament.

Minister Bill Shorten can first delete all of the FWA/WC strike provisions. Then insert the above ILO principles and a section to ensure no one can take a legal case against any industrial action, full stop.

Employer legal sanctions to stop strikes and fine striking workers and union officials are not available. Corporate law firms are out of industrial relations. The right to withdraw our labour-power is legally paramount over all corporate law.

What does this ‘firewall’ protection for the strike mean? Such a new FWA guarantees freedom for workers in unions to collectively bargain with strikes. Unionists are free to determine the strike processes, the timing, the negotiations, the notices etc and free to determine how we take industrial action democratically in paid workers’ meetings. Free to pursue our demands not in anyway legally constrained, not restricted by old legalities of ‘matters pertaining to employment’ or so-called ‘not allowed’ matters. Free to put on industrial pressure for claims not only for wages and conditions in collective agreements but over so-called management prerogative decisions, over industry development strategies, for job protection provisions, environmental demands etc.

The right to strike on occupational health and safety is absolute.

The employer right to lockout is repealed. No Minister has the discretion to stop industrial action.

Industry and pattern bargaining industrial action is lawful as the industrial parties are free to determine at what level to bargain.

The Building and Construction regime now in FWA is abolished. Restrictions in trade-related industries, such as the waterfront are repealed.

The lawful strike extends internationally – essential for unions to organise globally in response to powerful multi-national corporate interests.

This right to strike politically is a last resort response to bad government policy affecting workers’ interests. Workers, as citizens in a democracy, have legal protection for political protest assemblies e.g. against WorkChoices; no penalties against workers taking time to attend ‘No War’ rallies or on foreign affairs protesting against dictatorships e.g. in Fiji and fascist acts such as Indonesian TNI genocide against the East Timorese. The lawful strike supports human rights struggles. Provisions in the Crimes Act and anti-terror laws are repealed. No exceptions such as ‘for damage to persons or property’.

Union officials organising the strike have legal protection against ancient British master and servant common law actions in tort, contract and in equity – no possibility of crippling damages. Industrial disputes are settled by the parties or in the FWA system and not in the courts.

Picketing is protected industrial action not subject to injunctions. Employers cannot employ ‘replacement’ labour to break a strike, as this is a violation of our freedom of association. The individual on strike is protected: no return to work orders, no threat of dismissal, no victimization, no fines.

Competition law outlawing solidarity strikes and secondary boycotts is removed.

2. The question is then reviving the strike so working people can regain power and transform Australia.

Unions know the strike is the essential means for the power to win our demands, e.g. secure jobs. How workers organise a winning strike is a priority. Historically in this era strikes are essential to respond to the capitalist and environment crisis and in response to the political attacks on workers’ rights. Democratic control by workers in their unions of their industrial action is central to defeat the employers’ decisions, defeat the corporate attack and defeat right-wing ‘austerity’ cuts.

The effective strike now is very difficult because of the repressive regime and corporate/government lawyers taking legal actions against unions. Employees in their unions in enterprise bargaining have to win ‘protected’ strikes as best we can.

Recruitment succeeds when integrated into successful strike action.

We can criticize past union leaders shifting resources to organize the un–unionized sectors, as this has failed to revive unions. We cannot resolve our crisis simply by adding new members – without a powerful strike in place.

Planned lengthy strikes are necessary to organise. Australian unions are good at the one-day protest publicity strike. But this gives the illusion of struggle, distracting from our real problem, which is the lack of an effective traditional lengthy strike. Secondary bans, boycotts and solidarity strikes are a powerful means of union strength and need to be again back in practice if unions are to succeed.

Mass general strikes in many countries are organised as the global capitalist order is in another chronic crisis period with corporate and state austerity attacks on workers. Occupy activists call for a general strike on May Day. But look back through history about how general strikes happened. They are organized in the workplace by union delegates and organizers organizing their co-workers and can be done again.

Our YRAW campaign proves our capacity strategically to win in civil society and politically. We defeated Howard, but failed to secure key rights at work.

We organise outstanding social unionism struggles with community support. But to win requires the power of collective strike action. Social unionism is not a replacement for direct struggle against employers. Social unionism where the strike is abandoned loses the central role of workers at work, at the point of production.

Co-ordinated strikes against the repressive anti-strike regime requires union members organising across industries, a mass strategy to defeat the penal powers, learning from the 1960’s anti-penal powers organising model resulting in mass national ‘Clarrie O’Shea’ strikes. Working class principles justify the refusal to follow unjust and illegitimate restrictions and for the principled defiance of judicial orders to win the right to strike.

“Labour is not a commodity”, “our labour power creates wealth”, “the right to strike is a basic freedom that distinguishes us from the slave or bonded labour or from fascism”, “ freedom from corporate and HR rule” etc.

3. But the strike is only a means. We return to work with more power. Workers’ struggles can then develop with democratic self-management agendas. Workers’ control over our work to counter employers’ control is the challenge. Tactics historically are sit-ins and occupations when workers facing redundancies took over factories and ran them cooperatively. We can learn about workers self-management cooperatives. We can study workers control developments.

As unionists we can listen to the history of militant workers who acted believing we can control our work and the economy without capitalist rulers.

Some of our richest Australians, like billionaire Clive Palmer, did not pay tax in his main private company last financial year. BRW lists his wealth at $5.05 Billion.

Unemployment has risen to 5.2% as at March 2012, yet Australia still relies on foreign workers.

Australian banks are some of the most profitable in the world, yet finance jobs are being shipped
offshore and interest rates sit above the reserve bank rates.
The social contract is broken.
This paper calls for a fundamental shift in policy, so that:
1) every Australian makes a fair contribution,
2) every Australian receives a fair distribution of wealth; and
3) every Australian who wants a job, has every opportunity to get one.Read in this document below

AJP final document

Jobs, rights, fairness and equality on the agenda as unions prepare for 2012 ACTU Congress
07 May, 2012 | Media Release Better protections for workers exercising their rights, a more balanced bargaining system and a range of improvements to economic and workplace conditions to help deliver secure jobs are all at the heart of a dynamic agenda for Australian unions leading into next week’s ACTU Congress.

The ACTU today outlines its vision to create a better future for Australian workers with secure jobs and a stronger, more equitable economy, to be endorsed at next week’s 2012 Congress.

Almost 1000 delegates representing workers from every industry and sector in Australia will attend the ACTU Congress at the Sydney Convention Centre from 15-17 May. ACTU President Ged Kearney said the triennial Congress – often referred to as a “Workers’ Parliament – was the largest and most important gathering of Australian unions.

In the lead up to Congress, draft policies have today been released covering industrial relations, social and economic policy and representation and organisation of workers. The policies are available at www.actucongress.org.au

Ms Kearney said the Congress would outline a positive agenda for Australian workers against a backdrop of increasingly militant campaign by employers to destroy the hard-fought rights of workers.

“We will put forward solutions to counter this employer militancy, through better bargaining powers for workers and stronger representation rights, including a Charter of Delegates’ Rights,” Ms Kearney said.

“But we also have a growing number of workers engaged in insecure work who are often powerless against hostile employers who put profits before workers.

“In response, unions will call on the Government to strengthen the rights for employees in insecure work, and to improve their conditions of employment.

“Improvements need to be made to allow workers to bargain for job security, and to prevent big employers from holding the economy to ransom through their refusal to bargain in good faith.

“The agenda for wages and conditions will include lifting the minimum wage to $660, improving rates of pay for young workers, and expanding the National Employment Standards.

“Australians unequivocally voted in 2007 for better rights at work and unions have subsequently achieved much success, including the negotiation of the Fair Work Act. But we are seeing a growing wave of attacks on the wages, conditions and job security of workers.

“This short-sighted approach will ultimately lead to a weaker economy. We know that a strong economy is underpinned by good jobs, a workforce in which everyone is given a chance to participate and in turn contribute to the economy.”

A comprehensive plan for economic and employment growth through vibrant service, manufacturing and resources sectors, alongside a strong public sector, will also be debated at the Congress, as will tax reform for a fairer and more inclusive society.

by Humphrey McQueen

The book should be compulsory reading for new and old union officers and organisers; it will certainly challenge them to decide whether they are workers’ representatives or ‘workplace relations practitioners’.
Howard Guille, former secretary of the National Tertiary Education Union.

McQueen has written a remarkable book rich in stories and case studies. Therefore, a review is an incredible challenge; it is easier to recommend reading.
Jan Cremers, University of Amsterdam, CLR-News

The latest offering by radical historian Humphrey McQueen is a cracking yarn. Despite McQueen’s stature as an historian, this is anything but a sterile academic work. The strength of this history is that McQueen takes a side, and you can’t miss it! Throughout, there is the unmistakable clarity that there are bosses and there are workers.
Alison Thorne, Freedom Socialist Organiser

McQueen holds history – in this case BLF history – up as a mirror in which we can reflect on our present situation, and in which we can see an alternative future. We Built This Country is a text with which readers can engage on numerous levels – it will be a welcome addition and enhancement to what continues to be a proud BLF tradition.
Aidan Moore, former builders’ labourer, The Recorder

GOULD’S BOOK ARCADE
32 KING ST, NEWTOWN
02 9519 8947
THURSDAY, 19 APRIL 7pm for 7.30

We Built This Country, Ginninderra Press, $30
Companion volume to Framework of Flesh, Builders’ Labourers battle for health and safety (Ginninderra Press, 2009) $30.

The context for the Qantas and Nurses’ dispute
Right now, about 40% of the Australian workforce is employed in “precarious”
or “flexible” employment, and most of them do not want to be there1.

The struggle for job security as direct, permanent employment is happening all
over Australia, and is central to both the Qantas and the current Victorian
Nurses disputes, although the detail is different.

In 2007 Labor rode into government on the back of the Your Rights At Work (YR@W) movement. In the midst of movement wide despair in 2005, YR@W
showed that the seemingly impregnable Howard government could be challenged and defeated because of its hated Workchoices laws. Having won government, Labor, among other things, consulted widely, including with
employer organisations, to replace Workchoices with the Fair Work Act (FWA). We have had 3 years now of the FWA.

For about 12 months various champions of Workchoices have been steadily
building a push to wind back Labor’s FWA and to restore Workchoices, with some variations and albeit under another name. The Qantas lock out and shut down was an important step in this corporate rights campaign.

The process is intended to culminate in 2 stages: first in the Labor
government’s own review of the Fair Work Act (henceforth “FWA”), due to start early next year and, secondly when there is a Federal election. Abbott has clearly stated that he wants to reverse Labor’s 5 year phase out of
statutory individual contracts (ie Australian Workplace Agreements) without
calling it Workchoices.2

The leading visible participants in this process include The Australian3 (of
course), including its “editor at large” Paul Kelly4, The Financial Review5,
Peter Reith6, Peter Costello, John Howard7, Jamie Briggs, Judith Sloan8,
1 http://securejobs.org.au/get-the-facts/
2 “Bring Back Work Contracts”, the Sydney Morning Herald, 3/12/09,Tony Abbott interview and story
by Phillip Coorey and Peter Hartcher
3 For example, The Australian, 10/10/11: “BlueScope Steel’s troubles blamed on giving ‘alarming’
control to unions”, by Hedley Thomas; 3/10/11; and http://www.theaustralian.com.au/nationalaffairs/
industrial-relations/ir-has-law-gone-too-far-with-work-choices-says-turnbull/story-fn59noo3-
1226188209225
4 Paul Kelly, Editor at Large, The Australian, http://www.theaustralian.com.au/news/opinion/blamegame-
misses-need-for-ir-reform/story-e6frg74x-1226182974056
5 For example, The Financial Review, 31/10/11: Editorial, and articles by Alan Mitchell, p. 4, Ian
Hanke p. 55, ‘Chanticleer’ back page; : “Battle for the workplace”, pp 16-20
6 For example, Lateline, ABC TV, 21/9/11
7 See http://www.abc.net.au/insiders/content/2011/s3271207.htm
2
various right wing think tanks like the Institute of Public Affairs9, particular
employer figures like Chris Corrigan, anti worker pro corporate legal firms,
especially Freehills, and a range of employer organisations10, including those
that are seen as more “moderate”, like the Australian Industry Group.

These disputes show that far from ushering a brand new world of workers rights and union power, the FWA carries a lot of Workchoices anti union and anti worker baggage.

Unfair dismissal rights are better but not extended to all workers yet. There
are stronger “general protections” for workers around “freedom of association”, but this is not extended to construction workers. The bargaining provisions remove new statutory individual contracts, but individual common
law contracts can survive along with a 5 year phase out of existing AWA’s.

It is easier for workers and unions to initiate bargaining, especially if well
organised and prepared in advance. But important features of Workchoices
bargaining are retained.

What has been confirmed in both the Qantas and
Victorian nurses disputes is the serious consequences of unprotected action,
just how regulated PIA is – it’s restricted to the bargaining process, difficult to
get it approved, and seen in sharp detail, penal powers for employers to use if
PIA becomes genuinely effective.
As one union leader put it back in 2008, there is much UNFINISHED BUSINESS. Much of what the YR@W movement thought they were fighting for did not appear in the new FWA. What gains that were achieved are now
threatened.

Power at work
It should be remembered that there was no “right to strike” in Australian
industrial law until the Keating legislation in 1993 that established protected
industrial action. Nevertheless, before that workers and their unions found a
way to use industrial action to advance their demands for a better life. But there had to be a dispute over an incident and or a demand. Strikes and other forms of industrial action were the mechanism that triggered conciliation or arbitration in “the Commission” that would deliver a settlement, as an award or
binding decision. In effect, workers industrial actions established the standards that are the ‘fair go’ that makes up the so-called “lucky country”.

Nothing that improved workers lives was ever offered or given by their employers. In that respect, nothing has really changed.

Penal clauses were available to employers to narrow and prevent effective action and included in the 1980s, as they still do, sections of the Trade
Practices Act to stop workers from supporting each other, taking solidarity
actions with and for other workers. Even the arbitration side of dispute settling
8 For example, http://www.workplaceinfo.com.au , 4/10/11
9 For example, Union Militancy Just Doesn’t Fly, The Sydney Morning Herald 31st October, 2011, John Lloyd
10 For example, http://www.workplaceinfo.com.au , 22/9/11
3
was widely viewed, not universally, as loaded against workers in favour of employers.

Workers power turns around 2 axes. First, there is the organising capacity, strategy and tactics, and ideology of unions to build workers power and influence, no matter what.

The second axis is about the statutory rights of workers to challenge their employers, to organise, combine, join unions, to
bargain, to mobilise on an industry or class wide basis, on industrial, and also
‘political’ and social matters.

If the law is repressive, unfair, or undemocratic, this first subjective axis
becomes critical, building the power to change the law, including by defying
and disobeying it, even making the most repressive elements inoperative.
This was the case in the 1950’s and sixties, when the “bans clauses” (and sometimes the Crimes Act), were the penal powers of the day, used to hamstring and prevent effective, union action. Over some years a strategy
was developed which culminated in the famous Tramways dispute that triggered the mass defiance that defeated the penal powers in 1969 11.

The Qantas dispute and now the Victorian nurses’ dispute highlight the new
penal powers of the 21st century.

However, now, these penal powers are
rooted in the Corporations power of the constitution, not the old conciliation
and arbitration power. Howard’s Workchoices came from the Corporations
power and excluded the conciliation and arbitration power. It restricted the
conciliation and arbitration rights of workers, and those of the Commission
itself. Then, under Gillard as Minister, the FWA was also written under the
Corporations power. (Even though ALP policy says that all appropriate
constitutional powers should be used.)

Regarding statutory rights and responsibilities in the FWA, two broad issues arise.

First, there are what the FWA calls the “general protections” available to
workers. Broadly, these protections are about “freedom of association”, the
rights of workers to join together in various ways to discuss and pursue their
issues. In general these are much better for workers under the FWA than
Workchoices, and capture some of the positive (also complex) features of the
old legal rights. But, the Fair Work Act does retain from Workchoices a
definition of “freedom of association” that includes “freedom from association”.

Second, there is the content and processes for bargaining “enterprise
agreements” that provide pay, conditions and rights above the minimums in
statutes, awards, and national test cases.
In bargaining under FWA, there are some important improvements on
Workchoices, but also critical features of Workchoices are retained. It is a
mixed bag.

11 Jack Hutson, Penal Colony to Penal Powers, Revised Edition, 1983, AMFSU.

Regarding the content of agreements, “What should workers (and employers), through their unions, be allowed to bargain into their
agreements? Only wages and conditions of employment? Or, should they
include workers rights about organising and representation?

And, critically, can they have job security rights? The status of “job security” claims has been a feature of workers struggles and legal contest for several decades now.

The statutory and case law tightly controls the text of a “job security” right, as
expressed in a collective agreement.

For example, an agreement cannot
directly prevent an employer from using outside contractors, instead of direct
employed workers, but it might be able to express the terms upon which they
can be hired. Whether an employer can substitute casual or contract workers
for directly employed workers does not “pertain to” the employment
relationship.

But, at the moment, the right of a casual worker to convert to a
permanent after a period of employment is permissible.

The right to prevent outsourcing of jobs to overseas locations appears to be very limited.
The exclusion or inclusion of the workers’ demand for job security, even if
agreed to by the employer, is based on the “matters pertaining” principle. That
is, does the claim “pertain to” the employment relationship? If it is encroaching
on ‘management prerogative”, the employer-as-owner’s right to control, it will
probably be denied. Fundamentally, job security is held to be a matter only for
employers and their managers.

The Workchoices warriors, and most employers, say that the law should not
allow workers the right to bargain job security clauses into their agreements;
that , employers, corporate boards and executives can be trusted to look after
jobs. The critical decision about whether a worker can protect their livelihood
is not their business; this can indeed be left to the tender mercies of their employer.

One reason why Victorian Nurses are so passionately committed to their
patient ratios is that the “independent umpire”, Commissioner Blair, found in
2000 that it was the best mechanism to secure the best care for patients. Just
like their own common sense! Now, the Victorian government says
“…there ought to be flexibilities of rostering capacity for peaks and troughs of
demand”. How many nurses are needed at any time should be judged by senior nurses, he (Mr Djonoff) says.
But Commissioner Blair found in 2000 that senior nurses were often ignored
by high-level hospital managers, who were preoccupied with cost control.
Nursing federation secretary Lisa Fitzpatrick says that remains the case.

The second question is about bargaining processes and rights to take
industrial action, including of course the “right to strike”. The right to strike is
an international core labour standard set by the ILO.
12 Do nurse-patient ratios really matter? Michael Bachelard, The Age, November 20, 2011 –

Under the FWA, just like Workchoices, there is no general ‘right to industrial
action’, even to ensure that an employer does not breach an agreement.

The right to “protected” industrial action is restricted to bargaining, and there are
penal powers inside this “right” should the “PIA” become effective.

Unprotected industrial action is subject to a range of penal powers that can be
used against individual workers, unions and corporations. 13

Even PIA is not a simple right: the FWA’s imposes a set of at least 4 hurdles
that the workers and their unions must jump across before they can exercise
the right. They include, for example:
· The union must apply to the FWA for a ballot for a PIA to be authorised
by a majority of the affected members,;
· The employers can oppose this ballot and the content of the ballot
question,
· A majority of members must vote and a simple majority of those voting
in favour determines whether the PIA is finally granted;
· Give 72 hours advanced notice to the employer about the type and
timing of action that might be taken.

At the same time, the employer is allowed to distribute, without any application to do so, a copy of the agreement they want to the entire
workforce for a ballot that may or may not be conducted by an independent party.

The Qantas dispute and the Fair Work Act

The Qantas board are on a hell bent path for a radical restructuring of the
company that includes significant relocation of its activities and associated
jobs overseas. They are exercising enormous power because of their control
of capital and associated investment decisions.
In the Qantas dispute we have seen the exercise of some counterpower by 3 separate unions, in 3 separate but coinciding bargaining processes, chasing 3 separate new collective agreements with different starting dates and claims,
endorsed very strongly by the members and backed up with different forms of
modest, low level industrial action, designed to minimise inconvenience to the
public. More Qantas bargaining is planned by the Qantas Engineering Alliance of unions in 2012.

First, what about the workers?
In regards to the Qantas dispute there has been precious little commentary
about the workers who have engaged in this struggle for job security.
In the 3 separate bargaining processes the workers bargained for months and
then decided to pursue PIA, they watched Fair Work Australia (FWAust)
consider their application to vote, check over and approve (maybe modify) the
13 See, for example, FWA, ss 539, 545-546

forms of action that might be protected, and eventually give them permission
to vote; then they voted, under Australian Electoral Commission control;
weighed up the very strong result in favour, bargained some more in good
faith, and then took very moderate PIA.
During their PIA ballot application to FWA, their job security claims would
have been scrutinised by FWAust because under the FWA it is, arguably, not
“good faith bargaining” if you are pursuing claims that are not “permitted
matters” or that are unlawful. The workers’ claims must have passed muster
when they applied, so at that point they had jumped all of the control hurdles
placed in front of them by the current law, most of them hung over from
Workchoices. These workers know what it is to be heavily “regulated”.

They engaged in their modest industrial action, kept on bargaining, and stayed cool in the face of abuse and denigration from their CEO14. They
participated in their actions with determination, colour, calm and dignity. Their
PIA was counter power against the power being exercised by the Qantas
board that threatened their jobs through the relocation of Qantas’ operations.
They were standing up for themselves and each other, rather than have someone stand up for them.
Then they found themselves locked out and grounded with barely any notice.

They absorbed the consequent s. 431 order against them, considering the
penalties and punishments they would have faced from both the courts and
from Qantas. They submitted to Full Bench’s decision.
Now, removed from their fray, they watch a Full Bench arbitration exercise
that threatens their job security claims, manipulated by Qantas using
provisions of the FWA established by Howard in his 1996 laws, and carried
over by Gillard through 2007-8 in her negotiations with the ACTU and
employer organisations.

The Victorian nurses have opted to defy the orders against them and maintain
their industrial action. They have the overwhelming support of the Victorian
community, but are fully aware of the range of sanctions and penalties that
might be used against them.
What must workers be thinking? “Why must our job security be excluded from
bargaining?” “What do you mean, ‘job security does not pertain to the relationship with my employer?” “Whose law is it that says that ‘my job security is bosses’ business, but not mine’?” “What makes you think our job
security can be trusted with my boss?” “Can my boss do what Alan Joyce did?”
14 The Herald Sun, 19/4/11: http://www.heraldsun.com.au/businessold/qantas-chiefalan-
joyce-attacks-kamakazi-pilots-engineers-unions/story-e6frfh4f-1226041601194

The lockout and the shutdown of the airline provided focus for the Workchoices warriors’ key messages, all of which are directed at the
restoration of Workchoices.

Three of the key questions about workers’ rights, relative to their employers,
still remain. First, should workers, through their unions, be able to bargain job
security claims into agreements? Second, how much statutory power do employers and unions actually have relative to each other? And, third, workers and how much power should they have?

For example, Judith Sloan15, academic, Westfield board member, said this
about the job security claims that are in the Qantas bargaining mix:
“The act (ie FWA) says nothing about the types of issues that can be
demanded by unions as part of enterprise bargaining. This contrasts
with the prohibited-content clause in the previous act.”
This is simply not true. There are limitations imposed on what can be claimed
starting in s. 172. Some claims may not be “permitted” and there are several
points at which these may be tested, either by the employer or the FWAust.
The main test is that the claim “genuinely pertain to the relationship” between
worker and employer, or between the union involved and the employer.
The Full Bench decision shows how strongly supported the claims and the
PIA were and how modest and accommodating the PIA actually was16.
The dominant media message from Qantas, and carried by most media in support of Alan Joyce, was that he had no choice but to escalate TO BOTH LOCK OUT AND SHUTDOWN. But, once again this message is not true.

The FWA in fact provides many options for Qantas, for that matter all
employers, to control the bargaining process, some of which have already
been described.

Qantas complained about a union official talking of ‘slowly cooking’ the
company in discussions with members about industrial action tactics. The
FWAust decision show that Qantas itself engaged in ‘slow cooking’, by
repeating NO to the most important claims over months, permitted by the Act,
and left the unions’ members with 2 options: capitulation on their most
important claims or protected industrial action tactics.

Employers are entitled to take “employer response action”, eg a lock out, that
is protected also, provided it is in response to the PIA taken by the union
members. There are no notice requirements and the employer is not restricted
to forms of counter action that ‘match’ approximately the action taken by the
workers. Suspension or termination of PIA does not necessarily flow from this
15 The Fair Work Act has three big flaws, Judith Sloan, The Australian, November 02, 2011 12:00AM
16 Fair Work Australia, decision regarding s.424 application by the Minister, 31st October, 2011, option.17

Ultimately, this is the option that was taken with the extra heat of the
shut down of the fleet to trigger access to s. 324 (see below).
Qantas could have sought from FWAust to suspend or terminate the unions’
PIA because that action was causing significant economic harm to the
company and other workers it employs. This is subject to a truth test.
Obviously Qantas was not sure whether they could meet that test.18
Qantas could also have lobbied hard for the government to make a direct
Ministerial Declaration under s. 431 to terminate the PIA. Suspension is not
available. There is no specific requirement on the Minister regarding how
much the employer must prove its case. It is feasible for the Minister to just do
what the employer asks for. Tony Abbott’s shrill demands that the government
take this option tell us a lot about his commitment to anti worker powers.
Qantas could have itself sought a suspension or termination order from
FWAust if PIA threatened or actually endangered the population or caused
significant damage to the Australian economy or an important part of it.19
Qantas could have threatened to lock out, then describe the consequent
shutdown and its safety and economic cost implications. But that would have
warned everyone and subjected the intent to scrutiny.
Therefore, to get the economic harm they needed they used the lock out PLUS the shutdown of the entire fleet, thus throwing the onus on the
government for direct Ministerial suspension (not taken), or the action it actually took to apply to FWAust. The intention was that if the government did not act, it would be blamed for 70,000 plus stranded passengers.
FWAust very quickly worked out that the Qantas lock out – shut down decision
had caused the economic harm, not the unions’ PIA’s:
“It is unlikely that the protected industrial action taken by the three unions,
even taken together, is threatening to cause significant damage to the tourism
and the air transport industries. The response industrial action of which
Qantas has given notice, if taken, threatens to cause significant damage to
the tourism and air transport industries and indirectly to industry generally
because of the effect on customers of air passenger and cargo services. The
Qantas evidence was that the cost to it alone is $20 million per day.”20

In other words, the workers’ actions were effective, Qantas was losing the
fight, and they went for the penal powers to save themselves, just like so
many employers have done in previous decades.
Qantas’ right, available when necessary to all employers, to apply to FWA for
suspension or termination, and separately for a Ministerial Declaration to
terminate, were created specifically for employers by the Howard government

17 Fair Work Act, section 412 and 413
18 Fair Work Act, section 423
19 Fair Work Act, section 424
20 Fair Work Australia: Decision, 31 October 2011. Matter no. B2011/3816

in 1996. They were designed then to rob workers and their unions of effective
industrial action, even before Workchoices came along.
Reith and Abbott were deeply involved in this.

Robbed of their universal right to take industrial action, simply because it is
effective, workers are removed as agents in defining their destiny through
collective action, and are forced to observe others (on huge salaries relatively
speaking and who never have to take action to get anything) arguing about and deciding on their futures.

In effect, workers are being told that you can do so much industrial action in
circumstances that are regulated, but if that action starts to be effective, we
will take it away. You can have so much power, but absolutely not so much
that you can hurt your employer like your employer hurts you.

Snap strikes are illegal. Snap lock outs are legal.

Thus, the notion that the FWA is weighed against employers is a myth that
must be promoted to legitimize ‘reforms’ that restore Workchoices in some form.

This did not stop The Australian’s “Editor-at-Large” Paul Kelly who wrote
straight after the lock out21 and shutdown:
“The Fair Work Act has changed the industrial relations culture and bargaining
in three critical respects. First, it shifts statutory power from employers to
unions. Non-union enterprise agreements are virtually impossible. Individual
contracts are banned. Union-run enterprise agreements are the name of the game.”
This is not true. All agreements under the FWA are ‘non-union’ agreements.
The union may start bargaining and be the prime movers throughout, but once
bargaining finishes (and even before that), the employer provides the
agreement to all employees for ballot and controls the decisions on how the
vote will be handled. The agreement is voted on by union and non union
workers and is considered “made” when a simple majority votes for it. It exists
between the employer and the relevant workers. Either the employer or union
lodges the agreement to FWA for FWA approval.
However, the union must
then apply to FWA for “coverage” under the agreement. The agreement is not
between an employer and the union.
Thus, agreements are being made and approved with a minority of or no union reps at the table.

Individual agreements (Workchoices AWA’s) are being phased out, new ones
are not available.

However, employers can still employ workers on individual
common law contracts provided they meet the minimum requirements of the Act.
21 Blame game misses need for IR reform, BY:PAUL KELLY, The Australian , November 02,
2011

Individual workers cannot be forced into pay and conditions less than the
award or National Employment Standards.

Conclusion: let’s win some “unfinished business”
One hypocrisy of the Workchoices warriors is their claim to be champions of
deregulation.

However, in order to implement the deregulation they favour -
the employer’s right to shift to a precarious workforce, or to relocate to a low
wage haven overseas – they advocate repressive regulation that prevents
workers from pursuing job security clauses in their agreements, and from
taking industrial action that works.

They support the right of the employer to add more workers to the 40% now in
precarious work.

In short, repressive regulation that shackles the workforce is
good regulation, because it deregulates the workforce.

The golden rule of corporate Australia is that decisions like Qantas’ to
manipulate income, investment and profit from domestic operations to set up
overseas operations on a “cheap airlines” model is nobody’s business except
the board.22 These decisions should not be analysed or mediated by the
workers affected by them, especially through bargaining, nor the FWA, nor the
government, or the community generally. They are sacred ground.

The Qantas dispute was also an opportunity for the Liberal Party, in playing its
role on behalf of employers, to eat into the Labor Government’s control over
industrial relations policy. They sought to establish new proof that there is no
single area of policy that the government is actually in control of. How much
Alan Joyce, Leigh Clifford and some of the senior execs in Qantas engaged in
this is not definitely known. But, we know that something fishy was going on between Shadow Treasurer, Joe Hockey, and Qantas well before the lock out was announced. The Liberals are well versed in how to put together a conspiracy in industrial relations.

The YR@W campaign against Workchoices was a great victory “politically”. It made history. But industrially the FWA is a significant, but relatively modest reform. The workers and their supporters who fought that campaign deserved
a lot more.

The question now is, can we mobilise between now and through the period of
the review next year to win the improvements we need.

Can workers and union rights be pushed to the front again?

The strategic choice for the union movement, in the face of the Workchoices push, is to defend what has been achieved, or to push strongly to complete at
least some of the “unfinished business”; to build a lobbying and internet
activist effort in support or, to genuinely mobilise a YR@W style campaign to
attack Abbott and make the Labor government more Labour.

The Act must be amended to reduce the considerable powers still available to
employers to dodge genuine bargaining, and especially to take on the
UNFINISHED BUSINESS:

· Get rid of the ABCC altogether.
· The right to bargain on job security issues without constraint. Job security is workers business.
· There must be industrial action rights to implement agreements after
they have been negotiated to counter the employer’s ability to breach
agreements.
· The lock out powers for employers must be removed from the Act or at
worst constrained, perhaps limited by a tough requirement to apply in
advance (just like unions must on behalf of workers for PIA) and to
proportionality against the action being taken by workers.
· To include industry wide bargaining rights;
· To recognise the right to political and social strikes and forms of action.

If the new penal powers – termination and suspensions of industrial action
with consequent statutory fines and common law damages against workers
and their unions – are retained, then we must start to imagine and develop an
industrial strategy that leads to defiance that makes them unworkable.
The Victorian nurses are on the right track. When will there be more supporters and followers?

22 Roy Green, http://theconversation.edu.au/planes-set-to-fly-again-but-what-now-forqantas-
4089?utm_source=The+Conversation+Daily+updates&utm_campaign=cdc0c2b8be-
DailyNewsletter&utm_medium=email

Don Sutherland is a National AMWU Industrial Officer

(The following is from the Journal of Political Economy no 56 p68 www.jape.org. But this key Howard repression of strikes remains in 2012 in the Fair Work Act and hence I only add in the ALP government. Unions still campaign for the removal of these penal powers against strikes.)

‘We won’t remove the right to strike’ claimed a government WorkChoices advertisement. But with WorkChoices and still with the Fair Work Act the legal right to strike has almost gone. Organising strike action legally was risky under
the former Workplace Relations Act (1996), the Trade Practices Act (1974) and the common law of torts. In practical terms it is now much more difficult. This article explores the implications of the unique WorkChoices scheme for legally curtailing workplace conflict by restricting further any lawful right to strike, arguably to the point of suppression.

In an era of the lowest working days lost for 45 years, strikes are not a public or industrial relations problem. Only 241,900 working days were lost in 2004-5, and in 2012 still very low in stark contrast with the strike waves of 1973-4 of 5,426,200 days lost. The government strategy to legally suppress strikes is nevertheless one
feature of the WorkChoices industrial relations regime that is retained by the Rudd and now Gillard government.

From the Right to Strike to the Suppression of Strikes

In 1993, the Keating government introduced a legal right to strike, called protected industrial action. Employees in enterprise bargaining industrial action maintained protection from dismissal. Unions had the lawful ability to organise and, as a last resort, to take strike action during enterprise bargaining without the risk of injunctions, fines and common law tort damages. Protected action applied based on minimum International Labour Organisation (ILO) Conventions on the freedom of association, and the right to organise and bargain collectively.

The Howard government’s Workplace Relations Act (1996) began the process of circumscribing the right to take protected action. The last ten years have seen the right to strike judicially narrowed and the scope of protection limited. Legal sanctions available to employers were increasingly used to secure orders and injunctions to halt strikes and to fine and make unions civilly liable for damages under common law. The International Centre for Trade Union Rights (ICTUR) exposed that Australia’s Workplace Relations Act (1996) failed to comply with ILO standards for the protection of the right to strike. The ILO stated in 1983:

“The right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests. These interests not only have to do with obtaining better working conditions and pursuing collective demands of an occupational nature but also with seeking solutions to economic and social policy questions and to labour problems of any kind

which are of direct concern to the workers”.

In 2005, with Senate control, the government signalled its intention to move even more strongly against the interests of organised labour by targeting the building and construction unions. The right to strike for building and construction workers was outlawed in the Building and Construction Industry Improvement Act (2005). This was rushed through in August 2005 and applied retrospectively to penalize unions’ campaigns. The new Australian Building and Construction Commission with wide-ranging powers is ‘investigating’ building unionists involved in so-called ‘unlawful industrial action’. Building workers’ basic civil rights to silence and not to incriminate themselves have been removed with the threat of six months jail for noncooperation (Roberts 2005). A CFMEU newspaper advertisement asked

“In what country can you be interrogated about a routine union meeting, and jailed if you don’t comply?” (November 28, 2005).

The International Labour Organisation (2005) upheld an ACTU complaint that the Building and Construction Industry Improvement Act (2005) breaches
ILO Conventions on union rights to freely associate and collectively bargain. The current Gillard 2012 amendments do not remove the anti-union powers.

Scheme Controlling Strikes Changed

In relation to the right to strike, the key features of the new WorkChoices
industrial relations arrangements retained by PM’s Rudd and Gillard are:
• pattern bargaining strikes are made unlawful;
• new compulsory secret ballots are preconditions for protected action;
• the AIRC has stronger powers to terminate protected action;
• the Minister has new unprecedented powers to halt strikes;
• strikes are outlawed during the life of an agreement;
• corporations have unlimited power for greenfield projects; and
• green bans and legitimate political protests are outlawed.

WorkChoices is a prescriptive ‘command and control’ penal model, designed to legally curtail so-called ‘unlawful’ industrial action. State power institutes a shift against collective union organising, creating a stronger corporate bargaining position. The Australian Industrial Relations Commission’s (AIRC – now Fair Work Australia) dispute settling role is transformed into ‘policing’ functions and the Federal Court’s legal sanctions are strengthened against industrial action. Without the practical and legal ability to strike, union collective bargaining is severely undermined.

Industrial Action Becomes Unlawful

The Workplace Relations Act (1996) created a dichotomy of industrial action that was protected and industrial action that was not protected. Protected action was available after the union notified an employer of a bargaining period for an enterprise agreement. Within this period, after three days’ notice the union could take strike action to press the claims without being penalised. Such protection did not extend to industrial action outside of enterprise bargaining, such as in response to grievances against management but, depending on the circumstances, not all unprotected industrial action was judged by the AIRC as illegitimate and consequently judged unlawful by the Federal Court. Some scope for industrial action existed and, rather than penalise unionists, the employer
often settled the dispute, with the AIRC’s assistance.

The WorkChoices/Fair Work Act scheme severely narrows the scope of protected action. The union’s capacity to undertake protected action is constrained.

Any strike outside of protected action is automatically unlawful, able to be stopped and subject to penalties. This has the potential to delegitimize and even criminalize previously legitimate industrial action.

The following six provisions are the levers that WC/FWA uses to exclude unions from taking strike action.

(1) New Penal Powers to Halt Strikes
First, the AIRC is now compelled to stop all strikes that are not protected action. WorkChoices removes the AIRC’s discretion to allow unprotected industrial action to occur by changing the provision that states that the AIRC ‘may’ stop industrial action that is not protected to ‘must’ stop industrial action that is not protected. Such compulsion overturns a decade of AIRC and judicial decisions, whereby a strike that was not protected was not necessarily halted by the AIRC and made unlawful by the Federal Court (Creighton and Stewart 2005). Now, irrespective of the specific circumstances of industrial action including
considerations of fairness and conciliation of grievances, the AIRC ‘must’ stop all pending or probable unprotected industrial action.

(2) Protected Action for Pattern or Industry Bargaining Outlawed
Under FairWork Act collective industry-wide industrial action is still prohibited and only action against a single business is permitted. This means that pattern or industry bargaining strikes, which serve to support claims made on more than one employer or on an industry, are made unlawful. New prescriptive instructions compel the AIRC to halt pattern bargaining. The shift in the balance of power to employers is profound, as pattern or industry bargaining has existed since the beginnings of unionism and has been widely accepted as pragmatic by the community and industrial institutions for lifting industry-wide working conditions. For national unions to be effective, workers have combined collectively with other workers for common industry interests. Indeed, it is hard to conceive of an effective industrial relations system that does not have elements of pattern or industry bargaining. For example, research by the Australian Centre for Industrial Relations Research and Training (2002) shows:

‘there is no sector in the Australian labour market or bargaining system in the OECD which fits the fictitious model of ‘genuine’ enterprise bargaining – all bargaining systems contain elements of pattern-setting and workplace bargaining.’

Under WorkChoices Australia is one of the few countries to directly outlaw pattern bargaining, in contravention of ILO standards on labour law. The ILO has previously criticised Australia for attempting to move down this path, stating that:
‘Provisions which prohibit strikes if they are concerned with the issue of whether a collective employment contract will bind more than one employer are contrary to the principles of freedom of association on the right to strike (1998).

Indeed, the ILO found in relation to multi-employer agreements that:
‘…by linking the concept of protected industrial action to the bargaining period in the negotiation of single-business certified agreements, the Act effectively denies the right to strike in the case of the negotiation of multi-employer, industry-wide or national-level agreements, which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests (ILO 1999:205).

By outlawing union pattern bargaining, employers have a new weapon aimed at unions in coming campaign rounds. In contrast, employers in national and industry associations are free to act together to pursue their interests. Employers can press individual contracts Australian Workplace Agreements (AWAs)(now abolished under the Fair Work Act) with identical conditions of employment in concert across their industries: this is not unlawful under WorkChoices.

(3) Compulsory Secret Ballots
WorkChoices introduces and Fair Work Act retains compulsory secret ballots before protected action can begin. Since 1996, three days notice of protected action gave some scope for unions to organise for action within enterprise bargaining. A postal ballot was voluntary and in practice not often used.

For protected strikes, it is now compulsory for unions and workers to comply with 45 sections of complex process requirements. The AIRC polices the process and the Australian Electoral Commission or a private agency conducts the ballot. Unions have to ensure a quorum of at least 50 per cent of eligible voters who must cast a vote, of which more than 50 per cent must approve the action. Only a simple majority of valid votes cast is warranted and indeed the quorum rule may hide the true level of support for the strike. For example, looking at votes in two
workplaces of 100 employees, where in the first 49 employees in the ballot vote, all in favour of strike action and in the second, 50 employees vote, 26 of them in favour of strike action. In the first example, strike action would not be authorised, while in the second it would, even though it would appear that there was greater active support for the strike in the first workplace. The traditional short ‘rolling stoppages’ tactically organised on the job will be impossible. If unions do manage to get through the 45 sections, longer stoppages are likely with an escalation of tension, an all-out approach to dispute resolution. The ILO accepts balloting before strikes, but not in a form that denies effective strike organisation (Novitz, 2003).

In 2004, Employment and Workplace Relations Minister Andrews argued that compulsory secret ballots:
‘were a basic issue of workplace democracy. We think it’s something that is justifiable because people ought to be able to have a say in matters about industrial action. They ought to be able to have a clear say in matters that affect them as employees.
But let me go a step further – we won’t be stripping away the
right to strike (The Australian 29/11/2004)’.

Minister Andrews did not cite any abuses. It is a conservative myth that union leaders force workers to strike (Hyman 1986). The contrast in WorkChoices with employer lockouts is also significant. No ballot requirement is made for employers legally locking out their workforce in bargaining for collective or individual agreements – no balloting of management, directors or shareholders.

Stewart (2004) has argued that the AIRC system has been excessively legalistic. Wide scope exists for legal challenges by employers to test whether unions have complied with appropriate processes. Judicial determinations in the past have found minor technical breaches of process in the conduct of both employees and employers that made their actions invalid. It can be predicted that further legal challenges to ballot requirements will be made. Under WorkChoices powerful legal firms hired by employer groups will more easily halt and penalise strikes.

Stewart (2005) sees WorkChoices as much more legally complex. Strict legalism, divorced from industrial relations fairness, will be a dominant priority for enforcing employer rights over the workers’ rights to collectively organise and strike.

(4) AIRC Powers to Suspend or Terminate Protected Action

Even if a valid vote authorises industrial action and union action is under
way, the AIRC has stronger powers to suspend or terminate it.
Termination can occur if the union is:
• ‘failing to genuinely try to reach agreement’;
• ‘endangering life, personal safety or health’ or ‘significant damage
to an important part of the economy’;
• taking industrial action with ‘employees who are not members’ and
• in a ‘demarcation dispute’;
• and for ‘cooling off’ orders to assist the employer’s negotiating tactics.

WorkChoices and still in FWA gives a significant new right to halt protected action to any third party affected by industrial action (i.e. not the employer and
employees in dispute). When there is significant harm to any third person
or action adversely affecting an employer, the AIRC must suspend the bargaining period. Industrial action is at risk where third parties are ‘particularly vulnerable’, or the conduct ‘threatens to damage the viability of a business’, ‘disrupt the supply of goods or services to a business’, ‘reduce the person’s capacity to fulfil a contractual obligation’ and ‘cause other economic loss’.
By definition, a strike affects other businesses and persons. As O’Neil (2004:11) has said about an earlier version of this Bill defeated in the Senate: ‘It is difficult to imagine that protected industrial action will not result in some economic damage to third parties and there is at the least the potential for the scope of the immunity offered under protected action to be narrowed.’ Any business affected can apply to halt protected action, such as car companies affected by strikes in component suppliers. Patients, students and any persons affected by public sector bargaining can apply. The ACTU (2004) said this was ’a spiteful proposal of the government’s repression of industrial action for the caring professions, nurses, teachers and others that portrays them as wanting to hurt students and patients.’

(5) Ministerial Power to Intervene
Two extraordinary Ministerial powers are introduced to stop strikes.
(a) Industrial Action Prohibited Over Claims Banned from Agreements
The Minister is given unprecedented power to ban union claims.
Protected action is not allowed if a union log of claims contains
‘prohibited content.’ The FWA did abolish the ‘prohibited content’ restrictions, but still FWA does not allow the parties .e.g. to agree on bargaining fees from non-unionists. Restrictions of agreeing only on ‘matters pertaining to the employment relationship’ take away the freedom of employers and employees to freely choose what they have in their enterprise agreement.

(b) Ministerial Declaration Terminates Bargaining Periods

WorkChoices further mandates executive power to the Minister to declare a bargaining period terminated to stop industrial action. The AIRC formerly heard argument, and on its merits, decided whether or not to terminate the bargaining period.

The Minister can now simply form an opinion on what is likely ‘to cause significant damage to an important part of the Australian economy’. This may not be limited to the ‘essential services’ of the army, police and senior public servants. The Minister, for example, could assist the Mines and Metals Association by stopping strikes that affect large corporations’ exports to China. Political intervention by the Minister into disputes is likely in these circumstances. The Gillard government did not use this in the Qantas dispute, but Abbott did say he would use this penal power.

(6) Prohibiting Strikes During the Term of an Agreement.
WorkChoices prohibits industrial action for all reasons during the term of an agreement. Minister Andrews has responded to employer lobbying by reversing the Federal Court decisions that stated that a union was not always prohibited from taking protected action during the agreement’s life. O’Neil (2004) argued that ‘the notion that industrial issues are closed for the life of a particular agreement is at odds with the fact that businesses are at liberty to significantly restructure the business during the course of the agreement, which will be responded to by claims from employees and their organisations.’ Total prohibition of strikes during the agreement is questionable in international labour law. The ILO allows a civic right to strike in political protest during the agreement (White 2005a). The right to strike, as a human right, cannot be totally
prohibited (Ewing 2004).

More Circumstances Removing the Right to Strike

WorkChoices and the Fair Work Act proscribes union strike action on important issues that are not directly industrial. ‘Green bans’ supporting environmental action are outlawed, even where there is support from community and environmental groups. Political protests with industrial action, although a legitimate civil liberty in a democracy, are made unlawful (White 2005a). Occupational health and safety action is legally made more difficult with a subtle legal change putting the onus on the employee to prove the health and safety risk.

Finally, unions under the Workplace Relations Act (1996) had immunity for 72 hours from common law tort while the AIRC conciliated the dispute, but this immunity is now repealed. No justification is given.

Nineteenth century ‘master and servant’ common law doctrines, where strikes by definition are tortious, are now immediately available. For over 70 years the industrial relations practice was to settle the claims, without recourse to the common law of tort. Now automatic common law injunctions apply. So more injunctions are likely, such as were used in the (in)famous Dollar Sweets case (Costello 1988), and damages that can cripple a union, as in the Pilots case with $6.48 million.

Conclusion
The right to strike, in practical terms, is extinguished by WorkChoices nd the fair Work Act. Workers legitimately taking industrial action may be liable to be ordered back to work, dismissed, fined, sued and even criminalised. This is a clear break with the century-old recognition within the Australian industrial relations system of workers’ collective rights to exert economic pressure through industrial action in order to balance the unequal bargaining powers between an employer and an employee (Cameron, 1970). Employees on collective union agreements may go into their next negotiating rounds without a credible threat for lawful industrial action and effective bargaining. Employers will know unions have few means to implement pressure through industrial action.

With higher penalties to curtail prospective strike action, the new scheme moves away from repressive tolerance towards the legal suppression of strikes. These changes herald an unprecedented institutionalised shift to greater corporate power and State intervention against unions.

Past suppression of strikes, however, has not worked (Hutson, 1983).

Powerful global corporations striving for profits will continue restructuring and intensify their anti-union campaigns by using the new provisions against organized labour. In this context the government’s ‘law and order at work’ strategy is designed to combat the resistance of so-perceived union ‘militants’.

Then ACTU Secretary Combet (now Minister) in 2005 anticipated that unions will not pay the fines and some union leaders could go to gaol. (This did not happen). It is pertinent to recall that in the 1969 unions defeated the then penal powers with national protest actions after the jailing of union leader Clarrie O’Shea. After there was recognition that penal sanctions were not justified.

Arguments for a legal right to strike were developed (Green 1990).

A similar challenge is for unions now to resist these new penal powers, as they do not have
legitimacy.

One part of the campaign for labour law reforms will have to be to protect the human right to strike.

Chris White, former Secretary of the United Trades and Labor Council
of South Australia, is now living in Darwin.

References omitted here but are available from chrisdwhite@bigpond.com

This interesting extract from Humphrey McQueen’s new book reminds us how important trade unions have been in protecting Qld coastline and the Barrier Reef in the 1970s -
and also how current Fair Work laws and Building laws same as WorkChoices makes green bans unlawful.

Send this on to your enviromental friends and support reforms for the right to strike over the environment.

Coral battleground 1970

After tenders to drill for oil on the Great Barrier Reef went out during 1969, the Queensland branch levied its members to bring a US expert to testify about the threat to the Reef. In speaking for the proposal, secretary Delaney pointed out that the Queensland Trades and Labour Council (T&LC) and the ALP were the ‘only working-class organisations to interest themselves in the [Royal] Commission’ into the Reef. In July, the T&LC placed a total ban on drilling. Until then, poet and activist Judith Wright had feared that the conservationists had lost. She declared the union action ‘spectacular and unprecedented’. That ban remains spectacular. It also set a precedent. Henceforth, environmentalists hoped that unions would win their battles for them.

Fraser Island – 1975
In 1975, the Bjelke-Petersen regime allowed mining on the world’s largest sand island. The damage was inflicted by the US construction giant, Dillinghams, the foe of BLs around the world. When Federal Council debated how to save this natural wonder, Queensland secretary Dobinson feared the loss of its perched lakes. Victorian assistant secretary Norm Wallace recalled enjoying the ‘crystal clear lakes above sea level which had outlets but no inlets. There is pure water, clean white sand, good rain forests and beautiful timber. Fraser Island must be preserved’. From Tasmania, Morgan pictured Fraser as the southern anchor of the Reef. All delegates opposed Dillingham’s vandalism. Gallagher urged them to gather support from other unions. The Federation joined the BWIU in banning all Dillingham projects until an official assessment had reported. After visiting the island late in May, Gallagher observed: ‘Experience has taught us that when the pressure is off, companies usually go for maximum profit’.

Extracted from Humphrey McQueen, ‘We Built This Country, builders’ labourers and their unions’, Ginninderra Press, 2011, pp. 290-1 and 293.

Section only on the Restrictions on taking protected industrial action – one key reform for the Gillard government and Minister Bill Shorten

“The UN and ILO recognise the freedom to strike as a fundamental human right. It is particularly
important in the context of collective bargaining.

However, Australia continues to unduly restrict the right of employees to take industrial action in support of bargaining claims.

First, as discussed above, certain work-related claims are prohibited by the law.

Second, the law prohibits industrial action in support of ‘pattern’ claims, even though a key aspiration of workers and unions, in the interests of fairness, is to secure equal pay for equal work within a single industry or
occupations.

Third, while unions generally support the concept that industrial action should only be taken if a majority of affected union members support it, the law continues to allow employers to interfere in the ballot of members, despite this being a matter between the union and its members.

Fourth, the detailed and bureaucratic procedures around the conduct of the ballot operate in practice to frustrate the speedy taking of protected action (and are exploited by employers for this reason).

Fifth, the imposition of a quorum for voting (when no such quorum applies when employees approve the making of an enterprise agreement) is also used to frustrate the taking of industrial action, especially in businesses with employees working at remote sites, or who do not speak English well.

Finally, and importantly, the Act continues the Work Choices era rules which permit protected
industrial action to be suspended or terminated almost at the election of the employer.

First, an employer can ask the Minister to terminate protected action; although this has never happened, it is too oppressive a power for the Minister to have in the first place.

Second, a large employer can take action to deliberately harm the economy, or endanger lives; FWA is then compelled to stop workers’
action. This was seen most recently in the Qantas dispute.

Finally, FWA must suspend protected action that is causing significant harm to the employer’s customers or suppliers; this provision can
almost always be invoked by large businesses.

These limitations on the right to strike in support of legitimate bargaining claims cannot be justified.

They contravene international law and ILO rules and violate the fundamental human rights of
workers to strike.

As such, they are inconsistent with section 3(a) of the Act, which expresses an
intention to comply with international law.

They should be significantly modified or removed.”

1. Amend the Fair Work Act to have a real right to strike.

2. Amend the Fair Work Act to restrict casual and other forms of precarious work to a limited period. Provide the requirement for on-going work, more secure contracts of employment. Fair Work Australia is to have the power and discretion to conciliate and arbitrate the transition to the more secure employment contracts.

1. The right to strike

I submit the lawful strike is essential for collective bargaining. WorkChoices’ repressive provisions with unnecessary and unfair sanctions against industrial action were retained in the Fair Work Act and all have to be repealed for effective collective bargaining system.

Only with employees’ ability to bargain with protected action without being ordered back to work and suffering penalties can employees and their unions be able to respond to the dire precarious work of continuing capitalist labour relations.

The international capitalist crisis daily worsens putting more pressure on business to move to precarious and exploitative work. In response, unions have the Secure Jobs campaign.

What is essential is for employees to have the FWA amended to protect the right to strike in order to balance the more powerful corporate and government forces.

I have written on my recommendations for a right to strike. I reference articles on the arguments for amendments to the Fair Work Act to protect the right to strike.

I argue for the fire walling of industrial action for protection for employees and their unions so that sanctions are removed.

I argue such an amendment is vital for employees in all the forms of non-standard work.

I urge as necessary the repeal of the Australian Building and Construction Improvement Act, and the ABCC functions and powers and not replace it with the current amendments before Parliament that have no merit.

All of the existing provisions from the earlier Workplace Relations Act and Work Choices still in the current repressive regime against strikes are to be deleted, as well as those in other laws such as the Trade Practices Act and the Crimes Act.

Instead, a broad legal protection for all forms of industrial action is inserted.

At a minimum, commonly accepted ILO principles as required protecting the right to strike are to be implemented. The history of such ILO principles and their non-application by Australia is well known in the industrial relations and labour law community.

Furthermore, as a result to the Qantas lockout, the employer is to be denied this bargaining weapon of the lockout and the provisions in FWA deleted.

Much criticism has occurred about the failure of the FWA to have an effective right to strike by industrial relations specialists, labour law academics, the ACTU and unions. In particular, see the critical analysis in Shae McCrystal’s book ‘The Right to Strike in Australia’. I recommend Professor Keith Ewing’s research on the right to strike and Tania Novitz on the ILO’s protection for the right to strike.

Fire walling the right to strike is necessary for parliament to accept as essential for workers to have some power in this capitalist crisis and to assist strategies for secure jobs.

2. Job Security in the Fair Work Act

The overall merit evidence from employees’ adverse experiences in precarious work and the unjust impact socially in the Australian community requires Fair Work Act amendments for job security. Here are key recommendations.

2.1 One amendment is to clearly restrict casual employment to only short periods, such as 4 hours daily and no more than fortnightly.

Then a provision that compels employers to move to on-going and more permanent employment and allows employees the transition from existing casualisation to these more permanent on-going employment contracts.

Such a provision has bargaining rights for precarious workers to change to secure employment with the terms to be negotiated and agreed. The clear right exists when not being able to reach an agreement for the employee(s) to access conciliation and arbitration from FWA to gain orders for process steps for more permanent work.

The same applies to ending many short-term contracts. After two short term contracts, then the employer is required to move to more permanent, on-going contracts.

Special attention is to support any employee with service e.g. more than seven years who is to be on a permanent contract. As well, an existing employee with 10 years before retirement is to be on a permanent contract. Employees in other non-standard employment sectors are to be protected such as in the disability sector.

2.2 The next new section is to ensure that labour-hire contract provisions are not attractive
to employers for lowering costs. The aim is have protections dealing with precarious work in the labour-hire industry. Such provisions are to ensure the same wages and conditions
in the user firm in similar work. Employees must be hired permanently for not less
than two years. There is a formal written contract with the same rate and benefits. The
worker may join the user firm’s union. Labour-hire is to be implemented generally for
short-term, supplementary and substitute positions. Provisions for transition and
compliance need to be put in place.

2.3 Strengthening enforcement provisions by employees and unions to ensure that employers pay legal wages and comply with all employment conditions of the contracts of employment, with speedy measures for exploited workers to recover wages. Increased penalties and damages against non-complying employers.

2.4 A provision that deems for compliance that legal minimums exist in contracts of employment so that those entitlements can be enforced even if there is no evidence of a written contract of employment.

2.5 Amend the unfair dismissal section so that the right applies to all employees, irrespective of the employee’s status or contract of employment or the size of the employer’s workforce. The big lie that employers may not employ was made up by Ian Hanke Peter Reith’s press secretary and is repeated by Liberals and Nationals ad nauseum in the media, but is to be rejected. Precarious workers ‘dismissed’ ought to have the lawful right to argue their case about why they were unreasonably dismissed before a user friendly FWA conciliator then arbitrator for reinstatement.

2.6 I urge strengthened redundancy provisions in a new minimum entitlement that has a provision for three months notice and one month’s pay for each year of service for redundant employees. Such a job security measure as a national entitlement deters employers from making employees redundant and assists redundant employees in this recessionary period.

2.7 A specific process provision for precarious workers with non-standard work arrangements to have the legal right to union representation and to be able to organise in unions.

I support the ACTU campaign for Secure Jobs.

I attach reference articles. I attach a brochure from the National Right to Strike campaign to have the FWA ILO compliant.

Insecure work issues in Australia are similar to those overseas. I urge investigation of other countries attempts to provide greater protection for their employees. As well, I recommend China’s labour relations and laws grappling with insecure work.

I have an arts/law degree from the University of Adelaide. I worked in SA for the AWU, the LHMU and then was elected as Assistant Secretary and later Secretary of the UTLC of SA. I then in Canberra worked for ASMOF and the NTEU and at the ANU teaching in Politics.

I have posts on the right to strike on my blog http://chriswhiteonline.org

I now live in Darwin and am a Senior Research Fellow at The Northern Institute Charles Darwin University.

References
Cameron, C. (1970) ‘Industrial protest: the Right to Strike’ University of Adelaide, WEA ‘Social order and the right to dissent’ 27/11/1970. (Australian Parliamentary Library).
Ewing, K. (2004) ‘Laws Against Strikes Revisited’, in Barnard C, Deakin S and Morris G editors ‘The Future of Labour Law’ (Hart Publishing, Oxford, 2004).
Ewing, K. (2008) ‘Restoring rights at work Lessons from the UK.’ Professor of Law, Kings College London (Published 10.11.08 by Catalyst http://www.catalyst.org.au)
Glasbeek, H. (2009) ‘Rudderless in a Sea of Choices: The Defeat of Your Rights At Work—Analysis and a Possible Response’ Professor Emeritus and Senior Scholar Osgoode Hall Law School, York University,Toronto and Visiting Professorial Fellow, Victoria University, Melbourne. Dissent Autumn/Winter 2009, p33 and posted http://chriswhiteonline.org
Peetz, D. (2005) 151 Industrial Relations and Labour Law Academics Senate WorkChoices No 175. http://www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/submissions/sublist
Roberts, T. (2005) ‘Civil Disturbance’ Workers Online June 2005, http://workers.labor.net.au/features/200506/c_historicalfeature_tom.html; ‘Into the Industrial Dark Ages: the civil liberties implications of the Federal Government’s Industrial Laws for the Australian Construction Industry’ in Civil Liberty, the Journal of the NSW Council for Civil Liberties Inc. June 2005
Romeyn, J. (2008) ‘Striking a balance: the need for further reform of the law relating to industrial action’ Published by the Australian Parliamentary Library

http://parlinfoweb.aph.gov.au/piweb//view_document.aspx?TABLE=PRSPUB&ID=2789.

International Centre for Trade Union Rights ICTUR (1999,2002-2007) Senate Submissions into WR Act and WorkChoices submission no.185. http://parlinofoweb.aph.gov.au ILO 1983, 1998, 1999 – 2003 Reports of the Committee of Experts on the Application of Conventions and Recommendation www.ilo.org
McCrystal, S. ‘Shifting the balance of power in collective bargaining: Australian law, industrial action and WorkChoices’, The Economic and Labour Relations Review, 16(2), May 2006, 210;
McCrystal, S. ‘Smothering the right to strike: WorkChoices and Industrial action’, 19 (2006) Australian Journal of Labour Law, p. 201
McCrystal, S. 2009 ‘A New Consensus: The Coalition, the ALP and the Regulation of Industrial Action’ in Fair Work The new Workplace Laws and the WorkChoices Legacy edited A. Forsyth and A Stewart (Federation Press, Sydney).
Novitz, T. (2003) International and European Protection of the Right to Strike A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union (Oxford University Press).
White, C. (2010) ‘Firewalling the right to strike in Australia?’ chapter 8 in G Radhika
Anand (ed). ‘The Right to Strike’(Amicus The Icfai University Press).
White, C. (2009) Senate submission the Fair Work Bill No 122 http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/submissions.htm
White C (2008) ‘The right to strike’ chapter in Evatt papers Sheil, C (ed) ‘The State of Industrial Relations’, Vol. 5, No. 1, Evatt Foundation, Sydney, 2008, pp. 91-102.
White, C. (2005) ILO Protection of the Right to Strike: ‘Inside the ILO Tent’ Evatt Foundation http://evatt.org.au/news/336.html.
White, C (2005) ‘The right to politically strike? The case for re-evaluation’. Evatt Foundation on-line13/4/2005: http://evatt.labor.net.au/publications/papers/139.html
White, C. (2004). ‘Right to strike issues in the October 2003 Universities national strike’ AIRAANZ 2004
White, C. (2005) ‘The Right to Politically Strike?’ AIRAANZ 2005 Conference Sydney Universityhttp://airaanz.econ.usyd.edu.au/papers.html
White, C. (2005) Senate Submission on the Building and Construction Improvement Bill
White, C. (2005) Senate Submission on WorkChoices Bill (2005) Senate Inquiry submission No. 129;www.aph.gov go to Senate submissions
White, C. (2005) ‘WorkChoices: Removing the Choice to Strike’ Journal of Australian Political Economy No56, 66. www.jape.org.
White, C. (2005) ‘Howard makes the ‘blue’ unlawful. The right to strike is down the WC’, Evatt Foundation on-line 2 November 2005, http://evatt.labor.net.au/news/358.html
White, C. (2006) pamphlet on ‘How Howard is taking away the right to strike.’
White, C. (2005) ‘Howard’s IR plans’ ICTUR International Union Rights Journal
White, C. (2006) ‘Provoking Building and Construction Workers’ 20th Conference AIRAANZ 21st Century Work: High Road or Low Road? http://www.aomevents.com/conferences/AIRAANZ/papers.php.New Matilda 7th July 2006 http://www.newmatilda.com
White, C. (2006) ‘The Perth 2007 and the right to strike’ ICTUR International Centre for Trade Union Rights magazine International Union Rights. Volume 13. Issue 3.
White, C. (2006) ‘The Perth 107 Right to Strike Contest’ the Australian Institute of Employment Rights www.aierights.com.au
White, C. (2006) ‘Right to strike contest. Provoking Building Unionists’ http://www.aeufederal.org.au/E07/FR/Perth107.pdf
White, C. (2006) ‘The right to strike removed’ Dissent, No. 21 Spring 2006.
White,C.(2007).‘What limits the right to strike?’ Blog: Larvatus Prodeo http://larvatusprodeo.net/2007/05/21/guest-post-by-chris-white-what-limits-the-right-to-strike/
White,C.(2007)Criticism of Kevin Rudd’s limitations on the Right to Strike.www.aeufederal.org.au/E07/election
White,C.(2007) Howard’s Prohibited Content on strikes http://solidarity.redrag.net/2007/05/03/prohibited-content/
White, C. (2007) ‘Restore the Right to Strike’ www.greenleft.org.au/2007/711/36927
White, C. (2007) ‘From Penal Colony to Penal Powers’, www.greenleft.org.au/2007/715/37126
White, C. (2007) ‘The Right to Strike to Save the Environment’
www.aeufederal.org.au/E07/election.html
White, C. (2007) ‘China Labour Law’ International Union Rights Journal,
International, 14(1), p17
White, C. (2007) ‘China’s New Labour Law The challenge of regulating
employment contracts. China moves beyond WorkChoices,’ Evatt Foundation,
Sydney http://evatt.labor.net.au/publications/papers/193.html.
White, C. (2007) ‘China moves on rights at work: China may be about to go past
Australia’, Evatt Foundation, Sydney, http://evatt.org.au/news/451.html
White, C. (2007) review of the DVD film by Joe Loh ‘Constructing Fear: Australia’s Secret Industrial Inquisition’ (www.constructingfear.com.au)

http://bushtelegraph.wordpress.com/2007/08/29/%e2%80%98constructing-fear-australia%e2%80%99s-secret-industrial-inquisition%e2%80%99/

White, C. (2004) Review Jim Marr, ‘First the Verdict The true story of the Building Industry Royal Commission’ Australian Options, No. 35, Summer 2004 www.australian-options.org.au.
White, C. (2004) ‘Howard Threatens the Right to Strike’ Australian Options, No. 38

http://securejobs.org.au/

I recommend two changes for more secure work.

1. Amend the Fair Work Act to have an effective right to strike.

2. Amend the Fair Work Act to restrict casual and other forms of precarious work to a limited period and apply more secure contracts of employment. Fair Work Australia is to have the discretion to conciliate and arbitrate the transition to the more secure employment contracts.

1. The right to strike

I submit the lawful strike is essential for beginning to enable employees and their unions to respond to dire precarious work of existing capitalist labour relations.

The international capitalist crisis daily worsens putting more pressure on business to further move to precarious and exploitative work.

In response, there is a driving imperative for employees to have the FWA balance the more powerful corporate and government forces by amendments that protect the right to strike.

I have written on this blog for a right to strike, firewalling industrial action for protection for employees and their unions.

I argue the right to strike is vital for employees in all the forms of non-standard work.

Arguments are strong for amendments to the Fair Work Act to protect the right to strike. I urge as necessary the repeal of the Australian Building and Construction Act, and the ABCC functions and powers.

All of the existing provisions from the earlier Workplace Relations Act and Work Choices still in the current repressive regime against strikes are to be deleted.

Instead, a broad legal protection for all forms of industrial action is inserted.

At a minimum, commonly accepted ILO principles protecting the right to strike are to be adopted. The history of such ILO principles and their non-application by Australia is well known in the industrial relations and labour law community.

Similarly, labour law critical analysis by Shae McCrystal ‘The Right to Strike in Australia’. I recommend Keith Ewing’s research on the right to strike and Tania Novitz (see this blog).

There is much criticism of the failure of the current FWA to have an effective right to strike in writings by industrial relations specialists, labour lawyers, the ACTU and unions.

Firewalling the right to strike I submit is essential to assist strategies for secure jobs.

2. Job security in the Fair Work Act

The overall merit evidence from employees’ adverse experiences in precarious work and the unjust impact socially at many levels in the Australian community requires Fair Work Act amendments for job security. Here are some recommendations.

2.1 One amendment is to clearly restrict casual employment to only short periods, such as 4 hours daily and no more than fortnightly.

Then a provision that compels employers and allows employees the transition from existing casualisation to more permanent on-going employment contracts.

Such a provision has bargaining rights for precarious workers to change to secure employment with the terms to be negotiated and agreed. The clear right exists when not being able to reach an agreement for the employee(s) to access conciliation and arbitration from FWA to gain process steps for more permanent work.

The same applies to ending many short-term contracts. After two short term contracts, then the employer is required to move to more permanent, on-going contracts.

Special attention is to support any employee with service e.g. more than seven years who is to be on a permanent contract, as is an existing employee with 10 years before retirement. Other non-standard employment sectors could be protected such as in the disability sector.

2.2 The next new section is to ensure that labour-hire contract provisions are not attractive to employers for lowering costs. The aim is have protections against precarious work in the labour-hire industry.

Such provisions are to ensure the same wages and conditions in the user firm in similar work employees from must be hired permanently for not less than two years. There is a formal written contract with the same rate and benefits. The worker may join the user firm’s union. Labour-hire is to be implemented ‘generally for short-term, supplementary and substitute positions’.
Provisions for transition and
compliance need to be put in place.

2.3 Strengthening enforcement provisions by employees and unions to ensure that employers pay legal wages and comply with all employment conditions of the contracts of employment, with speedy measures for exploited workers to recover wages. Increased penalties and damages against non-complying employers.

2.4 A provision that deems for compliance that legal minimums exist in contracts of employment so that those entitlements can be enforced even if there is no evidence of a written contract of employment.

2.5 Amend the unfair dismissal section so that the right applies to all employees, irrespective of the employee’s status or contract of employment or the size of the employer’s workforce.

The big lie that employers may not employ was made up by Peter Reith’s press secretary and is repeated ad nauseum in the media, but is to be rejected.

Even precarious workers ‘dismissed’ ought to have an opportunity to state their case about why they were unreasonably dismissed before a user friendly FWA conciliator then arbitrator for reinstatement or not.

2.6 For strengthened redundancy provisions in a new minimum entitlement that has a provision for one month’s pay for each year of service for redundant employees. This new minimum deters employers from making employees redundant and assists redundant employees in this recessionary period.

2.7 A specific process provision for precarious workers with non-standard work arrangements to have the legal right to union representation and to be able to organise in unions.

I support the ACTU campaign for Secure Jobs.

As the many issues of insecure work in Australia has overseas the same issues this Inquiry will investigate other countries attempts to deal for greater protection for their employees. I recommend China’s attempt (see this blog).

I urge support for the Independent Inquiry into Insecure Work in Australia